Ed Sheeran Faces Jury Trial for Latest Copyright Infringement Lawsuit

Digital Music News reported last month that a New York federal judge refused singer-songwriter Ed Sheeran’s request for summary judgment in a closely watched lawsuit alleging that Sheeran’s hit “Thinking Out Loud” cops Marvin Gaye’s “Let’s Get It On”.

According to Law360, the judge’s refusal to dismiss the case means the matter is headed to trial.

The $20 million suit was filed in 2017 by the estate of Ed Townsend, Gaye’s writing partner. It turns on the parties’ interpretation of the original copyright for “Let’s Get It On.” Townsend’s estate contends that the copyright covers the entire recorded version of the song. Sheeran argues that the copyright is far more limited, covering only a “bare bones” version, according to Digital Music News.

Townsend’s estate contends that “Thinking Out Loud” copies the original chord progression of “Let’s Get It On.” The Sheeran camp’s dispute of that “material fact” was integral to the U.S. District Judge Louis D. Stanton’s decision to allow the matter to proceed to trial, according to Digital Music News.

Stanton pointed to a YouTube video that lays bare the similarities between the two songs. In the video, Sheeran navigates an effortless transition between the two works during a stage performance. That transition is compelling evidence that “Let’s Get It On” and “Thinking Out Loud” share fundamental similarities that might meet the threshold for copyright infringement, hinted Stanton.

“Not only are there substantial similarities between several of the two works’ musical elements, but an ordinary observer might experience the aesthetic appeal of both works as the same,” wrote Stanton. The trial jury “may be impressed by footage of a Sheeran performance which shows him seamlessly transitioning between [‘Let’s Get It On’] and [‘Thinking Out Loud’],” he continued.

Sheeran is no stranger to lawsuits alleging copyright infringement. In June 2016, songwriters Martin Harrington and Thomas Leonard filed suit against Sheeran in a California court. The complaint alleged that Sheeran’s hit song, “Photograph,” was an egregious ripoff of a little-noticed ballad by Matt Cardle, a U.K. talent show winner. Sheeran’s songwriting partner was also named in the suit, which demanded $20 million in lost revenues and other damages.

Sheeran and the two plaintiffs reached a confidential out-of-court settlement in early 2017, according to The Daily Beast.

The most recent Sheeran suit isn’t the first involving a Marvin Gaye property. In 2015, Gaye’s estate sued Canadian musician and producer Robin Thicke and R&B superstar Pharrell for $7.4 million, according to Digital Music News. The complaint alleged that the duo’s smash hit “Blurred Lines” copied Gaye’s seminal “Got to Give It Up.”

In a contrite interview with The New York Times, Thicke blamed the similarities between “Blurred Lines” and “Got to Give It Up” on “carelessness” attributable to the messy, drawn-out end to his 10-year relationship with actress Paula Patton. But the successful suit dealt Thicke a serious career setback and forced the music industry to reckon with the implications of an increasingly strict definition of copyright infringement.

As of early February, a trial date has not been set for the latest Sheeran-Gaye suit. It is unclear whether the parties are pursuing a pre-trial settlement out of court.

Worth Their Weight in Gold: The Role of the Lawyer in the Modern Music Business

law-1063249_640Entertainment Law Firm – Yu Leseberg, A Prof Law Corporation Wins in Court of Appeals; Played Key Role in the Multi-Platinum Career of DJ Mustard

Not long ago, the California Court of Appeals issued a decision backing Helen Yu of Yu Leseberg, the former attorney of Dijon McFarlane – better known as DJ Mustard – in a legal battle with his accountants false information provided by the accountants over appropriate attorney fees standards in the music industry.

The Appellate Court’s findings support what’s still true in America: You get what you pay for. And the best lawyers are well paid and worth their weight in gold.

Beyond the Bottom Line

While the case may seem to focus on entertainment lawyer fees, the case is really about protecting the sacred trust between an attorney and their client, and how business managers and accountants attack an artist’s only line of defense – their lawyer, if they want to control.

“Don’t just be in it for money,” DJ Mustard said to Forbes magazine. While he doesn’t mention her by name, much of what he discusses in the article about his start in the industry can be credited back to his legal representation by Helen Yu. Ms. Yu represented him in every significant music deal of his career, including a slew of Billboard hits from the likes of Tyga, YG, Tinashe, Trey Songz, Kid Ink, Jeremih, Wiz Khalifa, will.i.am., 2Chainz and Roc Nation.

The Backstory: Helen Yu and DJ Mustard

Let’s back up a bit and review what actually happened here.

Helen Yu of Yu Leseberg, a veteran Los Angeles entertainment attorney, agreed to represent DJ Mustard when he was an aspiring young DJ trying to make it in L.A.’s cutthroat music scene.

Yu, to be clear, is one of the go-to lawyers for recording artists in southern California, the epicenter of the American recording industry. She’s handled and negotiated legal transactions for a number of household names, including:

  • YG
  • Ne-Yo
  • Verdine White of Earth Wind & Fire,
  • T-Boz of TLC,
  • Snoop Dogg,
  • Ty Dolla $ign,
  • David Guetta and
  • Members of the Black Eyed Peas

She is also a staunch advocate for musicians’ intellectual property rights. She has won millions of dollars for clients; among other victories, she legally recovered very valuable copyrights for the heirs of T. Rex frontman Marc Bolan.

Helen Yu began representing Mustard in October 2011, when he was an up-and-coming artist living in a garage in Inglewood, near the approach zone for Los Angeles International Airport. Among other services, their relationship included:

  • Representation of DJ Mustard in his capacity as a songwriter, producer, recording/performing artist, and DJ
  • Connecting Mustard with one of the top premier DJ agents in the world

At the time, Mustard was a man of limited means. Rather than charge an hourly rate that he likely could not afford, she agreed — and Mustard assented — to charge him the industry standard of 10% of his gross compensation. So, if a deal is negotiated for $10,000, the lawyer is paid $1000.   With Yu’s guidance and negotiation skills, Mustard’s career began to explode, including a lucrative song deal and a multi-million-dollar music publishing agreement negotiated by Yu.

Desire To Control Talent

As the initial lawsuit says, as the deals kept coming and Mustard’s wealth grew. Soon enough, Yu connected him with the accounting and business management firm of Nigro Karlin Segal Feldstein & Bolno. With the accounting firm’s help, Mustard’s wealth would be well-managed.

About a year into being Mustard’s accountants, a new accounting representative at the firm was assigned to Mustard’s account, Wallace O. Fortune. Fortune informed Mustard that she was over-billing, claiming that nobody in the industry charged 10%, which according to Yu is false information.  She says – “there is no price fixing among music lawyers. Like with anything, each firm charges market rate depending on their experience, scope of work and reputation”. Even two divorce of personal injury lawyers don’t charge the exact same thing. Music producers don’t charge the exact same thing…

According to the lawsuit, this accounts representatives prodding upset Mustard. So, in an attempt to smooth things over with her client, Yu agreed to modify the fee structure, charging just 5% on future deals with an exception: for producer and publishing deals under $30,000, Yu would receive a minimum fee of 10% [see page 9, section 32 of the complaint].

Fast forward to Mustard receiving a small check in the sum of $1869.30 from SoundExchange, an arrangement that Helen Yu had set up for Mustard. Yu charged him $186.93 for work on this matter, well within the exception above. But Fortune’s office indicated to Mustard that Yu was overcharging him. Mustard immediately contacted Yu and ended his almost-three-year relationship with her.

Anti-SLAPP? Not So Fast

That’s the background on the issue. Now, for the main event.

Shortly after Mustard terminated his relationship with her, Helen Yu sued Wallace Fortune and Nigro Karlin for intentionally and negligently interfering with her attorney-client relationship based on false information they provided to the client.

Fortune and Nigro Karlin shot back by claiming their actions were protected by their free speech rights under California’s anti-SLAPP law, which allows a petitioner to “file a special motion to strike a complaint filed against [them] based on an ‘act in furtherance of [their] right of petition or free speech under the United States or California Constitution in connection with a public issue,’” according to the Digital Media Law Project. The motion claimed that the public had an interest in the amount of money an entertainment lawyer charges their client.

But the court disagreed. And so did the California Court of Appeals, where Fortune and Nigro Karlin appealed and lost. The California Court of Appeals wrote, “This lawsuit is based entirely upon Defendant’s  statement about legal fees Plaintiff charged Mustard. Those fees are not a matter of any interest to the public.”

Why Ruin a Good Thing?

Strip everything else away and this case boils down to a simple matter: that an accountant wrongfully interfered with a client’s legal representation to get control of the money,  when said legal representation was key to a successful career. Clearly, Yu and Mustard had a good thing going; with Yu as counsel, Mustard went from earning virtually nothing to earning millions per year.

Where is the case now? With the court of appeal’s decision, it’s back in Los Angeles Superior Court. And, despite what GQ Magazine described as “…. his generally disappointing solo album, 10 Summers…” DJ Mustard is still making music.